P. v. Stanch

Filed 11/30/06 P. v. Stanch CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TREYVON MARQUEST STANCH,
Defendant and Appellant.
B184949
(Los Angeles County
Super. Ct. No. YA059625)
APPEAL from a judgment of the Superior Court of Los Angeles County, Eric
C. Taylor, Judge. Affirmed.
John Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
______________________

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Treyvon Marquest Stanch was convicted of three counts of second degree robbery,
two counts of first degree residential burglary, and one count of first degree burglary. He
challenges the court’s selection of the high term for the principal count. While we agree
the court improperly relied on the handgun use as a factor in aggravation, we find the
error harmless.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was charged with robbery, burglary, and other crimes arising from four
incidents in August and September of 2004. The only errors asserted on appeal involve
selection of the upper term on count 3, and we limit our statement of facts accordingly.
At 1:00 a.m. on September 13, 2004, 65-year-old Ray Ragland was working in his
garage. A man, later determined to be appellant, came into the garage. He was wearing a
black mask, black sweatshirt and black pants. Appellant pointed a gun at Ragland and
said, “This is a holdup. I want all your money.” Ragland tried to get away from the area,
but slipped and fell. He told appellant he did not have any money. According to
Ragland, appellant said, “‘If you give me money, I won’t hurt you,’ or something along
those lines, ‘Give me all your money,’ And I kept telling him, ‘I don’t have any money,’
you know. And then he—he said, ‘If you don’t give me your money,’ or something like
that, ‘I’ll kill you.’”
Ragland was afraid appellant was going to hurt him, so he reached up and grabbed
the gun. Appellant put his arm around Ragland’s neck and choked him, telling him to
“‘Let this M.F. [sic] go.’” Ragland held onto the gun as appellant continued to choke
him. The two men struggled. Appellant called out, and another man dressed in black
with a black mask came into the garage. Ragland put both hands on appellant’s gun and
turned it up toward appellant. He pulled the trigger, but it just went “click.” Appellant
tried to hit Ragland with the gun, then reached down to Ragland’s pocket and discovered
there was no money. He said, “‘I should have killed you,’” and turned to leave. On his
way out, he spotted Ragland’s cell phone, and took it.

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Ragland was sore from the fight, and he suffered a cut across his nose. His blood
pressure “probably went up 50 notches” from the incident.
Appellant was found guilty of this residential robbery (count 3), and on five other
counts. The allegations that he personally used a handgun in the commission of these
crimes were found true, and he admitted a prior serious felony conviction allegation.
Count 3 was selected as the principal term. He was sentenced to the high term of six
years on that count. His aggregate sentence was 50 years. Appellant filed a timely
appeal.
DISCUSSION
I
Appellant claims the court’s selection of the high term for the principal count
violates his right to have a jury decide all facts that justify imposition of an aggravated
term, as explained in Blakely v. Washington (2004) 542 U.S. 296. In People v. Black
(2005) 35 Cal.4th 1238, the California Supreme Court held that Blakely does not
invalidate California’s upper term sentencing procedure.1 For this reason, we reject
appellant’s claim.
II
In selecting the high term on count 3, the court stated: “[W]ith respect to count 3,
there are no mitigating circumstances. Under [California Rules of Court, rule] 4.412,2
Mr. Stanch personally used a firearm. The crimes involved great violence, threats of
great bodily harm, specifically, that were vicious and callous. The victims on this count
and all the other counts seem to be particularly vulnerable. With respect to the defendant,
1 The United States Supreme Court has granted a petition for writ of certiorari in
People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub
nom. Cunningham v. California (Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [126 S.Ct.
1329], to decide whether Blakely affects California’s upper term sentencing scheme. The
cause was argued on October 11, 2006.
2 All references to rules are to the California Rules of Court.

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given the number of crimes and the way that these crimes were carried out, he does
present a danger to society, a serious danger. As a juvenile, in ’98, he had a sustained
petition for burglary and had camp for that. There’s a robbery recorded in 2000 as an
arrest only, which will not be considered; and he was on probation at home for a Health
and Safety Code violation. And the court won’t consider that, but it does consider his
2002 burglary and first degree residential burglary conviction in—as part of his prior
record. It appears that the crimes have been increasing in violence and callousness and
seriousness. He did have a prior prison commitment, and his performance on parole was
obviously not good.” At this point, the prosecutor clarified that appellant had been
discharged from parole on April 26, 2004, which was just four months before the first of
the crimes. For these reasons, the court selected the high term.
Appellant claims the court should have considered his early confessions to all the
charged offenses, including count three, as a circumstance in mitigation. Under rule
4.423(b), a factor in mitigation may include the fact that “(3) The defendant voluntarily
acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.”
Appellant was arrested following the robbery of a laundromat (count 1). While in
custody, he initiated contact with Detective Marin, with whom he had a relationship.
According to the detective, appellant essentially wanted to know what he could do to get
out of trouble. Appellant waived his Miranda3 rights, and Detective Marin asked him
about two robberies of a convenience store (counts 5 and 7). Appellant initially denied
involvement. As a ruse, Detective Marin told appellant his fingerprints had been
recovered at the store, although no fingerprints were recovered. Only after that did
appellant admit involvement in those crimes.
Detective Marin and Detective Paavola then questioned appellant about two home
invasion crimes. Appellant admitted the first, the home invasion of Isabel King and Dan
Arki (counts 8, 9, 10). Appellant lived down the street from the victims and had known
the family for years and may have believed he had been identified by the victims. He
3 Miranda v. Arizona (1966) 384 U.S. 436.

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admitted committing the Ragland robbery after Detective Paavola used a ruse, telling
appellant that Ragland’s fingerprints were found on appellant’s gun.
These circumstances undercut appellant’s claim that he voluntarily acknowledged
his wrongdoing. The trial court acted within its discretion in concluding there were no
mitigating factors as to count 3.
III
Appellant challenges the court’s finding as a circumstance in aggravation that the
Ragland robbery involved great violence. Under rule 4.421(a), it is a circumstance in
aggravation that “(1) The crime involved great violence, great bodily harm, threat of
great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness.”
Appellant argues that, although there was a physical altercation between himself
and Ragland, it was initiated by Ragland “and was otherwise unremarkable.” He argues
that the threats to the victim “were no more than can be expected of a robbery, whereby
the victim’s property is obtained by force or fear.” He also claims there was no showing
that the threats were vicious or callous.
Appellant’s assertion that the physical altercation was initiated by Ragland is
misleading. Ragland grabbed onto the gun because appellant had it pointed at his chest
and Ragland was afraid he would get hurt. During the ensuing struggle, appellant put his
hands around Ragland’s neck and proceeded to choke him. He also tried to hit Ragland
with the gun. Ragland suffered a cut across his nose, soreness, and an apparent increase
in his blood pressure.
In addition to this violence, appellant threatened great bodily harm. There was
more than just an initial threat that if Ragland did not hand over his money, appellant
would kill him, which appellant argues is no more than would “be expected of a
robbery.” Appellant repeatedly said, “I’ll kill you. I’ll kill you.” And just before
appellant left the garage, he told Ragland, “I should have killed you.” From this, the
judge could reasonably find that appellant threatened great bodily harm demonstrating a
high degree of callousness.

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IV
Appellant next claims the court erred in finding the victim was particularly
vulnerable, within the meaning of rule 4.421(a)(3). Ragland was 65 years old, and was
alone in his garage in the very early hours of the morning. This is sufficient to support
the court’s finding.
V
Appellant claims that use of a weapon was not a permissible factor in aggravation
under rule 4.420(c). We agree.
Penal Code section 1170, subdivision (b) provides that where a “statute specifies
three possible terms, the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.” Rule 4.421 sets out
circumstances in aggravation for purposes of selecting the term of imprisonment,
including the fact that the defendant was armed with or used a weapon at the time of the
commission of the crime. (Rule 4.421(a)(2).) But rule 4.420(c) limits the use of a fact in
aggravation in certain circumstances: “[A] fact charged and found as an enhancement
may be used as a reason for imposing the upper term only if the court has discretion to
strike the punishment for the enhancement and does so.” (Rule 4.420(c).)
The enhancement in this case was personal use of a firearm during the commission
of a robbery pursuant to Penal Code section 12022.53, subdivision (b). Subdivision (h)
of that section expressly precludes the court from striking the enhancement:
“Notwithstanding Section 1385 or any other provision of law, the court shall not strike an
allegation under this section or a finding bringing a person within the provisions of this
section.” (Pen. Code, § 12022.53, subd. (h).) The court accordingly imposed the 10-year
enhancement. Pursuant to rule 4.420(c), the firearm enhancement may not also be used
as a reason for imposing the upper term. But the trial court’s error in doing so was
harmless in this case.
“When a trial court has given both proper and improper reasons for a sentence
choice, a reviewing court will set aside the sentence only if it is reasonably probable that
the trial court would have chosen a lesser sentence had it known that some of its reasons

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were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.) Here, in addition to the
great violence and vulnerability factors we have discussed, the court also found appellant
represented a serious danger to society as a result of his prior record, that his crimes were
increasing in violence and seriousness, and that appellant had committed these offenses
just a few months after he was released from parole. Appellant does not challenge these
additional factors in aggravation. Given these reasons and the absence of any meaningful
circumstance in mitigation, it is not reasonably probable that the court would have chosen
a lesser sentence had it not relied on the use of a weapon as a factor in aggravation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.

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